Davis v. Terry

Citations

• 33 Tex. 426

Syllabus

<p>1. An application for a new trial, made at a term subsequent to that at which judgment was rendered, is in the nature of a bill in equity, and is not governed by the statutory provisions relating to new trials.</p> <p>2. When judgment has been rendered against a defendant, and at a subsequent term he applies for a new trial, alleging a meritorious defense, and showing that he was debarred from establishing it by reason of accident, fraud, mistake, or other circumstance not imputable to his own fault or neglect, the application should he granted, even though only á primo, facie case of injustice is made apparent in the application.</p> <p>3. The assurance of the district judge, to a defendant in a civil suit, that no civil business would be transacted at that term, warranted the defendant in believing that no action would be taken in his cause, and excused his neglect of his defense at that term; and this, in connection with a prima facie showing of a good defense, entitled him at the next term' to have a new trial of the cause, which, notwithstanding the judge’s assurance, had been adjudged against him by default at the first term. But, had the assurance been made by any one other than the judge of the court, it would not have availed the applicant.</p>